At least four states have filed legislation to restrict use of public restrooms to biological sex.

Brian Fraga

CHARLOTTE, North Carolina — Whether men can use women’s public restrooms, or teenage boys should be allowed to play for their high school girls’ basketball teams, will be the kinds of questions facing elected officials, school administrators and judges across the United States in 2017.

In at least four states, so-called “bathroom bills” — legislation to restrict the use of public restrooms to one’s biological sex — have recently been filed. And elected officials in other states, notably Texas, have said they will also make enacting legislation a priority in the coming year.

Those bills are similar to a law the North Carolina General Assembly passed and Gov. Pat McCory signed in March 2016, after the Charlotte City Council enacted a local anti-discrimination ordinance to allow people to use public restrooms that correspond to their chosen gender identity.

“When you look at what the city of Charlotte did in North Carolina, they were itching for a fight,” said Robert Destro, director of the Interdisciplinary Program in Law & Religion at The Catholic University of America’s Columbus School of Law.

The North Carolina law generated months of intense national criticism and threats from corporations, such as Apple and Google. Other companies cancelled planned expansions in the state, and sporting events were moved to other states, causing an estimated loss of $600 million in economic activity.

Despite some indications that lawmakers would rescind the measure in a special legislative session on Dec. 21, the North Carolina law remains in place, prompting the president of the National Association for the Advancement of Colored People (NAACP) state chapter to say he will ask the national organization to call for an economic boycott of the state.

‘Unmoored’ Debate

Gerard Bradley, a professor at the University of Notre Dame who teaches legal ethics and constitutional law, told the Register that one can criticize the transgender ideology fueling the anti-North Carolina sentiment without referencing religion.

“It really is an ideology completely unmoored from science, and even from reality,” said Bradley, who is writing an amicus brief in a pending transgender case before the U.S. Supreme Court.

Destro, who has written about the intersection of constitutional law and the homosexual and transgender rights movements, told the Register that people who oppose those ideologies as being incompatible with the truth of human nature and sexuality have been put in a difficult spot because activists for those causes, aided by a sympathetic national media, have sought to capture the moral high ground in the debate.

“So the question becomes: What exactly is the obligation of someone who doesn’t buy it?” said Destro, speaking of transgenderism. “Do people have to treat it as a norm and treat people according to their gender identity? Then you run into serious questions, like [about who can use or join] locker rooms and sports teams. The same thing has happened in the military, with the whole idea of the government having to pay for [sex-change] surgery, and there is some debate [over] whether or not that surgery is even ethical.”

Despite some studies that show gender-transition surgeries can harm patients with gender dysphoria, the federal government under President Barack Obama has thrown its full support behind those medical procedures and the transgender movement in general.

In 2016, the Obama administration, through a U.S. Department of Education opinion letter, said public schools must allow students to use bathrooms that correspondent to their chosen gender identity, or face possible cuts in federal funding. Also, the U.S. Department of Health and Human Services (HHS) promulgated new regulations that essentially require all employers to include gender-reassignment surgeries and related hormonal treatments in their employee health insurance plans.

The regulations, enacted by HHS in May 2016, interpret existing provisions in federal civil-rights law that prohibit discrimination on the basis of sex — or biological gender — to also incorporate so-called gender identity and sexual orientation, despite the fact that Congress has repeatedly refused efforts to amend the laws to include that language.

“What is clear is that Congress never intended the word ‘sex’ in any civil-rights act at issue here to include gender identity,” said Martin Nussbaum, an attorney who represents churches and religious organizations in religious-liberty cases.

Religious Freedom Attack Continued

Nussbaum is representing the Catholic Benefits Association in a federal lawsuit, filed on Dec. 28, that challenges the HHS regulations and related rules from the U.S. Equal Employment Opportunity Commission (EEOC), as violating the First Amendment, the Religious Freedom Restoration Act and other federal laws.

The lawsuit includes as a plaintiff the Diocese of Fargo, North Dakota, which received notice last fall from its health insurance company that, beginning on Jan. 1, 2017, the diocese’s sponsored employee health plan would provide coverage for gender dysphoria and would include gender-reassignment surgery.

Nussbaum told the Register that the regulations would even require dioceses, religious orders and other Catholic employers to cover surgical abortions in their health plans. The lawsuit says that EEOC and HHS have created an “Abortion and Comprehensive Transgender Services (ACTS) Mandate” that interprets Title IX — a 1972 law barring sex discrimination — as prohibiting discrimination based on gender identity and termination of pregnancy.

“By redefining ‘sex’ to mean both ‘gender identity’ and ‘termination of pregnancy,’ the Obama administration is not only trying to sidestep Congress and impose radical new health care mandates on hospitals and employers, it is creating a moral problem for Catholic employers that must be addressed,” said Baltimore Archbishop William Lori, who is also chairman of the Catholic Benefits Association. In a press release announcing the lawsuit, the archbishop noted that Congress and the courts, for decades, have understood the term “sex” in federal law to mean biological sex, male and female.

According to the lawsuit, none of the HHS or EEOC rules have a religious exemption or grandfathered plan exemptions, meaning that institutions across the Catholic spectrum — such as dioceses, schools, hospitals, colleges and closely held businesses — have to perform or pay for medical procedures that contradict Catholic teaching.

Nussbaum said the “continued assault on religious freedom” by the Obama administration — which already pushed a contraceptive mandate through HHS — is “mystifying.” He noted that the EEOC has filed an amicus brief in a lawsuit brought by the ACLU on behalf of a man suing Dignity Health because it would not pay for his gender-reassignment surgery.

“Under the analysis of RFRA (Religious Freedom Restoration Act), a very important statute that would be relevant in these circumstances, once Catholic employers establish that the ACTS Mandate burdens their religious exercise, the government then has to prove that they have imposed this burden on religious freedom with the least restrictive means available,” said Nussbaum, who argued that the government would fail the RFRA test that it has a compelling interest and that there is no less burdensome way of accomplishing that interest.

Cases Before U.S. Supreme Court

The question of whether gender identity should be a protected class in federal civil-rights laws could at some point find its way to the U.S. Supreme Court. In October, the high court agreed to hear arguments in a lawsuit filed by attorneys representing a Virginia teenage girl who identifies as a boy but was denied permission by her local school board to use the boys’ restroom at school.

“If the court finds that gender identity is protected as sex, that would be quite problematic for religious freedom, because of the resulting confusion it would create over conduct and identity,” Nussbaum said.

But the pending case before the high court — Gloucester County School Board v. G.G. — may rest on more technical legal issues, such as how much deference the courts should give to the U.S. Department of Education’s “Dear Colleague” opinion letter and whether the department’s interpretation of federal civil-rights laws and a 1975 regulation pertaining to separate bathrooms, locker rooms and showers for boys and girls should be given effect.

“If the Supreme Court agrees to review the case as a purely administrative law question, which looks like they did, then [the ruling] is going to have less impact, especially given the upcoming change in administrations,” Destro said.

President-Elect Trump’s Stance

On the campaign trail and since the November 2016 election, President-elect Donald Trump — who is seen as friendly to the homosexual community and has said he believes the U.S. Supreme Court’s ruling on same-sex “marriage” is settled law — has not spoken out much on transgender rights.

In April 2016, Trump waded into the issue during a town-hall event, when he answered a question on the North Carolina law and said that people should “use the bathroom they feel is appropriate.” Trump also said Bruce Jenner, the former Olympic athlete who now identifies as a woman, would be welcome to use whatever bathroom he preferred in one of Trump’s luxury buildings.

Joshua Mercer, political director of CatholicVote.org, told the Register that he does not believe Trump will make it a priority to focus on legislation related to religious freedom and the transgender movement. Such legislation would face a steep climb in the U.S. Senate anyway, Mercer said.

“There might be some executive orders from the Obama administration that [Trump] repeals, but that might be the extent of what he does,” Mercer said.

Nussbaum said the Trump administration could rescind the U.S. Department of Education opinion letter, as well as rescind the HHS transgender rule or revise the regulation to grant a broad religious exemption. But Nussbaum added that there are some things the incoming administration will not be able to undo.

Said Nussbaum, “There is now some precedent out there where courts are following the regulation issued by the Obama administration and saying, ‘We, too, as a court, interpret these statutes to say the same thing the regulations say.’ That’s why the Catholic Benefits Association [filed suit] — the only choice it had to serve its members was to seek judicial relief.”

Religious Leaders Push Back

Despite what may happen on the political and judicial fronts, dozens of religious leaders and intellectuals are making it known that they oppose government coercion or censorship of citizens who have biblical views on human nature and sexuality.

In December, 75 religious leaders signed the statement “Preserve Freedom, Reject Coercion,” which argues that efforts to include sexual orientation and gender identity as protected classifications in federal anti-discrimination laws have threatened basic freedoms of religion, conscience, speech and association. Those efforts, the signatories said, “violate privacy rights and expose dissenting citizens to significant legal and financial liability for practicing their beliefs in the public square.”

The statement’s signatories include Archbishop Charles Chaput of Philadelphia, Archbishop Lori of Baltimore, Bishop Frank Dewane of Venice, Florida, and Bishop George Murry of Youngstown, Ohio.

Bradley, the Notre Dame law professor, also signed the statement. He told the Register that many people, including doctors and counselors, are being “conscripted into unsound therapies” and forced to cultivate “gender-affirming environments” that may be mandated in schools and other facilities. The dominant strand of transgender ideology, Bradley said, argues that boys who identify as girls are really girls trapped in boy’s bodies and vice versa.

“That is all contrary to science, of course,” Bradley said. “But it means, too, that believers are being conscripted into going along with and promoting a metaphysics of sexual identity as male and female which is contrary to revelation.”

“...And yet, here you are, trying to prevent people from using the bathroom.” I do no such thing.

Posted by Theresa H on Sunday, Jan, 8, 2017 11:26 PM (EST):

This whole “novel” topic is insane! Your gender is determined by your genitals, not by what (male or female) you “think” you are—-or “want” to be! For sure, psychological help is what people need who are confused regarding this matter.

Posted by Joseph R Yungk on Sunday, Jan, 8, 2017 11:42 AM (EST):

““What are the specific concerns about transpeople using a bathroom?” I’m not sure there IS an issue with that.”

and yet, here you are, trying to prevent people from using the bathroom.

Posted by James on Saturday, Jan, 7, 2017 9:06 PM (EST):

” What are the specific concerns about transpeople using a bathroom?”

There are none, it’s the idea that just makes people uncomfortable, as would a transgender person using the bathroom corresponding to their birth-trust me, that would make you much more uncomfortable. Either way, everyone should have a right to use a bathroom. People always come up with the pedophile card when they are uncomfortable, so they stretch the idea and create a threat. If you look at the main points, the subject is met with immediate distress but then changed to a violent alternative reality.

Posted by Larry Northon on Saturday, Jan, 7, 2017 7:15 PM (EST):

“Reading on opinion does not exactly qualify one as any kind of expert.” Who said that it did? I quoted an expert with extensive experience to refute an assertion that gender identity was supposedly fixed at birth, as though it were natural and normal for some people to have a different gender identity than their birth sex. “Dr. Paul R. McHugh has been widely disagreed with and considered outdated.” Of course left-wingers like yourself consider him “outdated.” What else can you do? You can’t admit that he’s right. The fact is, liberals consider the truth outdated. So what else is new and different. “While you say he advocates ‘fixing’ their minds, his research shows his methods were unsuccessful.” I didn’t say it. HE did. I quoted him. Yes, indeed, his “research” showed his methods had been unsuccessful, those methods being sex-reassignment surgery. He and other concluded after many years of giving the treatment that it was not only useless, but it constituted cooperating with a delusion. “I hear a lot of concerns about pedophiles dressing as women to gain access to a bathroom, they can do that now.” The difference is that from now on, they wouldn’t have to DRESS as a woman in order to claim a female gender identity and use the ladies room. The Obama Justice Department in its directive to schools, I do not believe specified any certain markers for someone claiming an identity as the opposite sex. “What are the specific concerns about transpeople using a bathroom?” I’m not sure there IS an issue with that. Whether sex-reassignment surgery is valid medical treatment or a crime against the human person and body—especially regarding children—is definitely a concern. “It’s so hard for religious groups to realize that others do have personal freedoms too.” A vicious and tendentious claim. Until the second decade of the 21st century, the consensus was virtually unanimous that people should use only the restrooms and showers dedicated to their own biological sex. Now you’re saying only uptight religious prudes would be against imposing the Ally McBeal bathroom on all of society? Even Calista Flockhart was quoted in an interview saying she wouldn’t work anyplace that had the type of restroom portrayed in the Ally McBeal serious.

Posted by Jackson on Saturday, Jan, 7, 2017 11:05 AM (EST):

I hear a lot of concerns about pedophiles dressing as women to gain access to a bathroom, they can do that now. What are the specific concerns about transpeople using a bathroom?

Posted by GCD on Saturday, Jan, 7, 2017 1:31 AM (EST):

Reading on opinion does not exactly qualify one as any kind of expert. Dr. Paul R. McHugh has been widely disagreed with and considered outdated. While you say he advocates “fixing” their minds, his research shows his methods were unsuccessful.

Posted by Joseph R Yungk on Friday, Jan, 6, 2017 10:54 AM (EST):

“Religious groups are a protected class, therefor we have freedoms, they do not. “

It’s so hard for religious groups to realize that others do have personal freedoms too.

Posted by Larry Northon on Friday, Jan, 6, 2017 9:34 AM (EST):

GCD: My credentials for WHAT assertions? That “gender identity” has not been proven to be fixed at birth and therefor unchangeable? It hasn’t! The former chief psychiatrist at Johns Hopkins Hospital, Dr. Paul R. McHugh says that JH stopped doing sex reassignment surgery long ago because the psychiatrists concluded that they had only been “cooperating with a mental illness” rather than treating it. He said, “We psychiatrists, I thought, would do better to concentrate on trying to fix their minds and not their genitalia.” The rest of my post consisted of questions and one conclusion about the poster’s reasoning. What “credentials” do I need for that?

Posted by Jimmy J on Thursday, Jan, 5, 2017 8:13 PM (EST):

“efforts to include sexual orientation and gender identity as protected classifications in federal anti-discrimination laws have threatened basic freedoms of religion, conscience, speech and association. “
Religious groups are a protected class, therefor we have freedoms, they do not.

““violate privacy rights and expose dissenting citizens “

We are the ones, given our freedoms, who expose others’ “privacy” in bathrooms.

Posted by GCD on Thursday, Jan, 5, 2017 7:55 PM (EST):

@Larry Northon, what are your credentials for your assertions?

@B_Braskey, religious and political conservatives have been exploiting this issue all along, it was the stuff of campaigns on both sides. I’ve heard nothing but vilification about the “dangers” of this. What are your credentials around “legitimate, medical science?” Ask any anthropologist, there are many cultures with a third or fourth gender.

Posted by B_Braskey on Thursday, Jan, 5, 2017 7:28 AM (EST):

Those pushing transgender bathroom access are a very small but vocal minority. their agenda is purely political and none of what they are telling everyone else that they must believe is based in legitimate, objective medical science. For thousands of years every society had accepted that there are two genders, male and female, that are determined by one’s biological sex. Suddenly we have a few people amongst us who do not feel comfortable in their own skin so they’re demanding that society at large redefine what it means to be a man and a woman to satisfy them. They’re demanding that we pervert science, logic and nature to coddle their fragile psyches. They make the claim that anyone who does not acquiesce to their every demand is an intolerant bigot yet they have absolutely no concern for how their actions affect others. They’re nothing but a passel of delusional, self absorbed malcontents. It’s time for the majority of society to stand up to them and their degenerate agenda. Enough is enough.

Posted by Larry Northon on Tuesday, Jan, 3, 2017 7:38 PM (EST):

“And promoting the idea that trans or genderqueer people are *choosing* their gender identity is wrong in itself. Cross-dressing is a choice. Your identity is not.” An unproven and unprovable assertion.“Going beyond that latter argument to then judge and condemn actual human beings…” Who’s doing that? We’re talking about whether individuals should be able to use whichever facilities they want regardless of their biological sex, and regardless of how others using those facilities feel about sharing them with someone of the opposite biological sex.“Obviously it gets more complex when we’re dealing school bathroom policies and the like, but the default position should be one of compassion and generosity, all things being equal.” Compassion for whom? For girls who may feel squeamish about gang-showering with a boy? Obviously our “compassion” must be very selective. “That does not mean that Catholics or others have to bend to the popular consensus…” They don’t? Then exactly what recourse do these folks have (such as our aforementioned girls) who are inclined to refuse to “bend to the popular consensus”? You don’t seem to grant them any. Which means, for all practical purposes, that they must indeed “bend to the popular consensus.” Yours is very confused reasoning.

Posted by Theresa H on Tuesday, Jan, 3, 2017 6:54 PM (EST):

After 20 Centuries, A.D. (and who knows how many B.C.?), how is it that we suddenly have a problem understanding this? Sexual ORGANS determine “MALE” or “FEMALE” gender. Period! And, clearly, homosexual-relations are contrary to the “Natural Law.” They are, also, explicitely forbidden in the BIBLE: “Do not be deceived, neither the immoral, nor idolators, nor adulterers, NOR HOMOSEXUALS, nor theives…..will enter the kingdom of God.” These sins are what are called: “Mortal!”)

Posted by Matt on Tuesday, Jan, 3, 2017 3:05 PM (EST):

It seems there is a lot of room for growth here. While some of the legalese here is technically correct (sex discrimination referring to biological sex), this has never been a hot-button issue before with intersex individuals who appear to be male or female but have the sex organs of both sexes. And why should it be an issue?

Most people who have undergone hormonal therapy to physically align themselves with their internalized gender identity are not loudly proclaiming it when they walk in a public restroom and they usually go unnoticed. Again, as it should be. It is a private affair.

Obviously it gets more complex when we’re dealing school bathroom policies and the like, but the default position should be one of compassion and generosity, all things being equal. That does not mean that Catholics or others have to bend to the popular consensus, it means that facilities which serve the public have a general obligation to accommodation, regardless of well-intended religious or other objections. And promoting the idea that trans or genderqueer people are *choosing* their gender identity is wrong in itself. Cross-dressing is a choice. Your identity is not. So, ultimately the identity people have is *not* a choice, whether it is a genuine expression of the self or, in the case of trans and genderqueer individuals (as the Church would argue), a misguided attempt at self-actualization influenced by the condition of gender dysphoria and influenced by gender theory. Going beyond that latter argument to then judge and condemn actual human beings not only goes beyond the Church, it is mean-spirited and has no place in public or private debate. I saw subtle digs throughout this article, either from quoted people or just in the content itself.

And of course there is an argument for religious exemptions for insurance purposes, but why must we go beyond the basic argument I noted above and resort to digs at people in the LGBT community? Such digs are cultural biases acting as filler, they are not moral or ethical arguments and they do nothing to advance Catholic social teaching. Just some thoughts. :)

Posted by Larry Northon on Tuesday, Jan, 3, 2017 2:32 PM (EST):

Justmaybe: Did you just say that “religions made rules” about what goes on in the bedroom? I was under the impression that “you shall not commit adultery” came from God Himself.

Posted by justmaybe on Tuesday, Jan, 3, 2017 12:32 PM (EST):

When they study “us” in the distant future, they’re going to conclude that we—on the Right and on the Left—had an unhealthy, uneducated preoccupation with what others did in two rooms. Hold on: the bedroom and the bathroom. “Governments made laws about who should be there. Religions made rules about what should go on there. Honest. It was all so silly, so intrusive, yet they—from lawmakers to bishops—for some reason thought it was top-level relevant, heck, even very important. Meanwhile…”

Join the Discussion

We encourage a lively and honest discussion of our content. We ask that charity guide your words.
By submitting this form, you are agreeing to our discussion guidelines.
Comments are published at our discretion. We won't publish comments that lack charity, are off topic, or are more than 400 words.
Thank you for keeping this forum thoughtful and respectful.